In addition, the state can defeat the
defendant's claim of self-defense by proving one of the statutory
disqualifications to the use of deadly physical force. The statute defining
self-defense describes certain circumstances in which a person is not justified
in using deadly physical force in self-defense against another. These
exceptions apply only to the use of deadly force, so if you have found that the
defendant used deadly physical force, you must consider these exceptions.

(One such / Another) circumstance is
that a person is not justified in using deadly physical force upon another
person if (he/she) knows that (he/she) can avoid the necessity of using such
force with complete safety by retreating. This disqualification requires a
defendant to retreat instead of using deadly physical force whenever two
conditions are met: 1) a completely safe retreat is in fact available to
(him/her); and 2) (he/she) knows that (he/she) can avoid the necessity of using
deadly physical force by making that completely safe retreat. The law stresses
that self-defense cannot be retaliatory. It must be defensive and not punitive.

The term "complete safety," as used in
this statute, means without any injury to the defendant whatsoever. A person
acts "knowingly"
with respect to a circumstance described in a statute when (he/she) is aware
that such circumstance exists. <See
Knowledge, Instruction 2.3-3.>

It is important to remember that the
defendant has no burden whatsoever to prove that (he/she) could not have
retreated with complete safety or that (he/she) didn't know that a safe retreat
was possible before (he/she) used physical force against <insert name of
other person>. To the contrary, you may only reject (his/her) defense on
the basis of this statutory disqualification if you find that the state has
proved beyond a reasonable doubt that (he/she) did know that (he/she) could
retreat with complete safety.

As a general rule, a defendant is not
required to retreat in (his/her) own dwelling before (he/she) may use force. A
dwelling is defined in our law as a place which is usually occupied by a person
lodging therein at night. "Usually occupied" means customary or routine nightly
occupancy. Thus, occupation for some period of time is required. In
considering whether a house is the defendant's dwelling, consider evidence such
as where the defendant's clothes and personal effects were kept.2

[<If the case involves a question
of co-dwellers:> To this general rule there is an exception which you may
or may not apply here, which is for you to determine as a question of fact.
That exception is that one claiming self-defense in (his/her) own dwelling has
the duty to retreat from a co-dweller before (he/she) may employ force against
that co-dweller. A co-dweller is a person who also is usually lodged in those
premises at night.

Accordingly, you must first determine
if the state has proved that <insert name of other person> was a
co-dweller with the defendant at <insert location>. If the state has
failed to prove that <insert name of other person> was a co-dweller, then
you go no further on this issue as the defendant would have no duty to retreat.
If, however, you find that the state has proved that <insert name of other
person> was a co-dweller with the defendant, you would then consider whether
the defendant had a duty to retreat in accordance with the previously stated
rule that a person must retreat before using deadly physical force if (he/she)
knows that (he/she) can retreat with complete safety.

If you find that the state has proved
beyond a reasonable doubt that the defendant and <insert name of other person>
were co-dwellers and that a retreat with complete safety was available to the
defendant and that the defendant knew it, but did not retreat, you shall then
find that the state has proved beyond a reasonable doubt that the defendant was
not justified in using deadly force.]

(One such / Another) circumstance
under which a person is not justified in using deadly physical force in
self-defense against another is when (he/she) knows that (he/she) can avoid the
use of physical force with complete safety by surrendering an object of personal
property to the assailant.

Under this provision, if the
assailant's conduct appears motivated by (his/her) claim to property that the
defendant possesses and the defendant knows that if (he/she) surrendered the
property that the assailant would cease the assault upon the defendant, then the
defendant may not use deadly physical force in defense and must surrender the
property.

It is important to remember that the
defendant has no burden whatsoever to prove that (he/she) knew that <insert
name of assailant> would cease the assault upon the defendant if the
defendant surrendered <insert property in question>. To the contrary,
you may only reject (his/her) defense on the basis of this statutory
disqualification if you find that the state has proved beyond a reasonable doubt
that the defendant knew that <insert name of assailant> would flee
without harming (him/her) if (he/she) surrendered <insert property in
question>.

(One such / Another) circumstance
under which a person is not justified in using deadly physical force in
self-defense against another is when (he/she) knows that (he/she) can avoid
the necessity of using such force with complete safety by complying with a
demand that (he/she) abstain from performing an act which (he/she) is not
obliged to perform.

Under this provision, if <insert
name of assailant>'s conduct appears motivated by (his/her) insistence that
the defendant stop <insert defendant's conduct in question> and the
defendant was not obliged to <insert defendant's conduct in question> and
the defendant knew that <insert name of assailant> would cease (his/her)
use of physical force against the defendant, then the defendant may not use
deadly physical force in self-defense and must comply with the demand.

It is important to remember that the
defendant has no burden whatsoever to prove that (he/she) knew (he/she) would no
longer be in danger from <insert name of assailant> if the defendant
stopped <insert defendant's conduct in question>. To the contrary, you
may only reject the defense on the basis of this statutory disqualification if
you find that the state has proved beyond a reasonable doubt that the defendant
knew that if (he/she) complied with the demands of <insert name of assailant>
then (he/she) would have no need to defend (himself/herself).
_______________________________________________________

General Statutes § 53a-19 (b)
applies only to the use of deadly physical force. A person is not limited by
these requirements before using nondeadly physical force in self-defense. See
State v. Anderson, 227 Conn. 518, 529 (1993) (one who can safely retreat
is not required to do so before using nondeadly force).

Knowledge of complete
safetyThe statute requires that the
person must know that he or she can avoid the necessity of using deadly physical
force with complete safety. State v. Quintana, 209 Conn. 34, 46 (1988).
It is reversible error to fail to include the word "complete" before "safety."
State v. Anderson, 227 Conn. 525, 532 (1993); see also State v. Byrd,
34 Conn. App. 368, 374-77, aff'd, 239 Conn. 405 (1996).

"A charge on the duty to retreat is
flawed if it fails to instruct the jury to consider the subjective component of
the duty to retreat: the defendant's knowledge of his ability to retreat."
(Internal quotation marks omitted.) State v. Montanez, 71 Conn. App.
246, 263 (2002). The correct measure of a person's knowledge of the ability to
retreat in complete safety is "the subjective standard of the defendant's actual
knowledge." State v. Ash, 231 Conn. 484, 495 (1994); State v. Amado,
254 Conn. 184,195-97 (2000).

Duty to retreat"Connecticut is among a minority of
jurisdictions . . . that has followed the position advanced by the Model Penal
Code that, before using deadly force in self-defense, an individual must
retreat." State v. Anderson, 227 Conn. 518, 530 (1993). The statutory
provision requiring retreat in lieu of deadly force replaces common-law rules.
See State v. Byrd, 233 Conn. 517 (1995). The trial court need not
instruct the jury on the duty to retreat if the state does not claim that the
defendant should have retreated. State v. Lemoine, 256 Conn. 193, 200
(2001).

The statute provides three
exceptions to the duty to retreat.

1. Dwelling

A person is not required to retreat
if in his or her own home or dwelling. "[T]he dwelling exception to the duty to
retreat rule does not encompass the common areas of the defendant's apartment
building such as stairways, hallways and foyers." State v. Silva, 43
Conn. App. 488, 493-94 (1996); State v. Rodriquez, 47 Conn. App. 91, 96
(1997).

Section 53a-19 incorporates the
definition of dwelling in 53a-100, which is "a building which is usually
occupied by a person lodging therein at night." This definition "contemplates a
duration element by requiring usual inhabitation at night. Usual in this
context obviously means customary or routine occupancy . . . in short,
occupation for period of duration." State v. Bailey, 209 Conn. 322, 343
(1988); see also State v. Adams, 52 Conn. App. 643, 649 (1999) (trial
court's instruction that in determining whether it was the victim's dwelling "at
or about the time in question" did not materially alter the statutory definition
of dwelling).

The co-dweller retreat rule was
adopted from the Restatement (Second), Torts § 65 (1965) in State v. Shaw,
185 Conn. 372, 279 (1981), cert. denied, 454 U.S. 1155, 102 S.Ct. 1027, 71
L.Ed.2d 312 (1982). A person is required to retreat when in his or her own
dwelling when threatened by another who dwells in the same place. The status of
the other person as a co-dweller is a question for the jury. See State v.
James, 54 Conn. App. 26, 37 (1999).

2. Workplace

A person is not required to retreat
if he or she is in his or her place of work and was not the initial aggressor.
The right to use deadly force in one's workplace was recognized at common law.
See State v. Feltovic, 110 Conn. 303, 311-12 (1929).

3. Peace officer

A peace officer or a private person
assisting such officer at his direction, acting pursuant to § 53a-22, is not
required to retreat.

Surrendering propertyThe instruction must convey the
person's knowledge that the assailant would flee if that person
surrendered the property sought. State v. Schiavo, 93 Conn. App. 290,
296-99 (2006) (court improperly substituted "could" in one part of the charge).

"A person is not permitted to use
deadly physical force in self-defense just because that person reasonably
believed that the victim was attempting to rob that person." State v.
Harrison, 32 Conn. App. 687, 694, cert. denied, 227 Conn. 932 (1993); see
also State v. Byrd, 34 Conn. App. 368, aff'd, 239 Conn. 405 (1996)
(deadly force is not allowed if person can retreat in complete safety or avoid
harm by surrendering property).